pired before him upon the examination of the parties themselves, or on an inspection of the plaintiff's books, upon the principle that the parties themselves could not have been examined in the former cause, nor the plaintiff compelled to produce his books; (c) but he may be called to prove what matters were claimed before him on a reference:(d) he cannot, however, be admitted or called on to give evidence of any concessions made by one party during the reference for making his peace, and getting rid of the suit, although, as to regular admissions by the parties, there is no objection to his testimony.(e) A person who acts as an inter- Interpreter. preter, (ƒ) or agent, (g) between the attorney and his client, or Agent. the attorney's clerk, (h) cannot be called on to reveal a confidential Clerk. communication, for they stand precisely in the same situation as the attorney himself, and are considered as his organs. So a barrister's clerk cannot be called to prove his master's retainer. (i) being one. It has been held, that a person who is consulted confidentially Person conon the supposition of his being an attorney, when in fact he is sulted as an not one, is 'compellable to answer. (2) And propositions which attorney not the attorney of one party has been professionally entrusted to make to another party, though they are not to be disclosed by the attorney himself, may yet be proved by another witness who was present when they were delivered. (a) And communications made to a person by profession an attorney, but not employed as Attorney not an attorney in the particular business which is the subject of en- consulted as quiry, are not privileged, though they may have been made confidentially. (b) such. communica attorney and client are privileged. tions between It now remains to be considered, what sort of communications What sort of made to an attorney, solicitor, or counsel by his client are entitled to protection. A very eminent writer on the Law of Evidence (n) has laid it down, that the privilege of the client is not confined to cases only where he has employed the attorney in a suit or cause but extends to all such communications as are made by him to the attorney in his professional character and with reference to professional business. And this opinion has been confirmed by the (c) Habershon v. Troby, 3 Esp. 38. by Lord Kenyon. (d) Martin v. Thornton, 4 Esp. 181. by Lord Alvanley. (e) Slack v. Buchannan, Peak. N. P. C. 6. Westlake . Collard, Bull. N. P. 236. Martin v. Thompson, 4 Esp. 181. It is said in Bull. N. P. 284. that a trustee shall not be a witness to betray the trust; and a case is cited, Holt v. Tyrrel, where the defendant pleaded to debt on bond, the statute of buying and selling offices, and upon the trial, a witness was called to give an account upon what occasion the bond was given, and Lord C. J. Holt, refused to admit him, because he was privately entrusted by both parties to make the bargain, and to keep it se cret. But this is contrary to the later Attorney not allowed to produce documents, &c. deposited with him by his client. court of Common Pleas in the case of Cromack v. Heathcote, (c) where it was held that an attorney to whom an application had been made to draw an assignment of goods which he declined to do, could not be allowed to disclose that circumstance, a question having arisen whether an assignment, subsequently drawn by another attorney, was fraudulent. And in that case a very learned person (d) said, that if an attorney were to be consulted on the title to an estate, he would not be at liberty to disclose any information thus communicated to him to the prejudice of his client. And Sir J. Leach, Vice-Chancellor, in Walker v. Wildman, (e) considered the protection to extend to every communication made by the client to his counsel, or attorney, or solicitor, for professional purposes. (f) But Lord Tenterden has several times expressed both before and since the case of Cromack v. Heathcote, at nisi prius, a contrary opinion. (g) In Williams v. Mundie his Lordship said, "The rule I have invariably laid down is, that "what is communicated for the purpose of bringing an action or "suit, or relating to a cause or suit existing at the time of the "communication, is confidential and privileged; but what an attorney learns otherwise than for the purpose of a cause or suit, "I think he is bound to communicate." (h) 66 An attorney will not be allowed to produce a deed which has been deposited with him confidentially in his professional character: and if the deed has been obtained out of his hands, for the purpose of being produced in evidence by another witness, it cannot be received. Thus a copy of a deed which had been obtained from one who had formerly been entrusted with the original in his professional character as an attorney, is not good secondary evidence against his client. (i) So on a prosecution for the forgery of a promissory note, an attorney who had acquired possession of the note in his professional character from the prisoner, was not compelled or allowed to produce it, although subpoenaed so to do, and although he was not employed professionally for the pri soner at the trial, but was originally consulted about the note, for the purpose of suing the party upon it whose name was charged "tion has arisen here, and it is one "to which I have given much consi"deration." See however his Lordship's judgment in the Easter Term following, in the case of Bramwell v. Lucas, 2 Barn. & Cress. 749. (2) Fisher v. Heming, MS. 1 Phil. Ev. 132. cor. Bayley, J., who said, "the "attorney could not give parol evi"dence of the contents of the deed, so neither can he furnish a copy. "He ought not to have communicat"ed to others what was deposited with "him in confidence, whether it was a "writing or verbal communication. "It is the privilege of his client and "continues from first to last." See also Copeland v. Watts, 1 Stark. N. P. C. 93. to be forged.(j) So in the case of Rex v. Dixon(k) it was held by Lord Mansfield, and the rest of the court, that an attorney, who had been served with a subpoena duces tecum out of the crownoffice to produce certain vouchers which his client, a Mr. Peach, had exhibited and relied upon, before a Master in Chancery, and which subpoena had been served on the attorney in order to found a prosecution for forgery against his client, was not bound to produce these required vouchers. (1) A barrister cannot be called to Counsel. prove what was stated by him on a motion before the court. (m) And the Attorney-General, if questioned as to the reasons for filing Attorney-gean ex officio information, may refuse to answer. (n) neral. facts an attorney may be examined. An attorney may be examined like any other witness to a fact As to what which he knew before his retainer, that is before he was addressed in his professional character, (o) or where he has made himself a party to the transaction, (p) or where he is questioned to a collateral fact which he might have known without being intrusted as the attorney in the cause. (q) Thus he may prove his client's handwriting though the knowledge was obtained from witnessing his execution of the bail bond in the action. (r) And he may be called to prove his client's identity. (s) And if he is a subscribing witness to a deed he may be examined concerning the execution. (t) Or if the question be about a razure in a deed or will, he may be examined whether he had ever seen such deed or will in other plight, for that is a fact of his own knowledge; but he ought not to be permitted to discover any confessions which his client may have made to him on such head. (u) So if the attorney were present when his client was sworn to an answer in Chancery, upon an indictment for perjury, he would be a witness to prove the fact of taking the oath, for it is a fact in his own knowledge, and no matter of secresy committed to him by his (1) See also Laing v. Barclay, 3 Stark. 38., where it was held by Abbott, C. J., that a solicitor under a commission of bankrupt was not bound to produce the proceedings under the commission in a collateral action, where the production might tend to the detriment of his clients, see also Harris v. Hill, 3 Stark. N. P. C. 140. S. C. 1 Dowl. & Ry. N. P. C. 17. Rex v. Upper Boddington, 8 Dowl. & Ry. 726. (m) Curry v. Walter, 1 Esp. 456. cor. Eyre, C. J., who said it was at the option of counsel whether he would give his testimony or not. A court of equity will compel the production of a case submitted to counsel, but not his opinion on it, Preston v. Carr, 1 Younge & Jervis 175. (n) Rex v. Horne, 11 St. Tr. 283. (0) Cults v. Pickering, 1 Vent. 197. (p) Duffin v. Smith, Peake N. P. C. 136. (r) Hurd v. Moring, 1 Carr & P. 372., ruled by Abbott, C. J. (s) Studdy v. Saunders, 2 Dow. & Ry. 347., but see Parkins v. Hawkshaw, 2 Stark. N. P. C. 239. (t) Doe v. Andrews, Cowp. 846. Robson v. Kemp, 4 Esp. 235. S. C. 5 Esp. 52. For if an attorney puts his name to an instrument as a witness, he makes himself thereby a public man, and is no longer clothed with the character of an attorney: his signature binds him to disclose what passed at the execution of the instrument, but not what took place in the concoction and preparation of the deed: by Lord Ellenborough, 5 Esp. 54. (u) Bull. N. P. 284. Communications between attorney and client not privileged if not professional. client. (v) So the attorney of one of the parties may be examined as to the contents of a written notice which had been received by him in the course of a cause, requiring him to produce papers; (w) for the privilege only extends to confidential communications from the client, and not to those from collateral quarters although made to him in consequence of his character as an attorney. (x) So an attorney who prepares deeds which are granted on an usurious consideration, may be called as a witness to prove the usury: for that does not come to his knowledge in the character of an attorney, he being as it were a party to the original transaction. (y) And where an action on a promissory note had been compromised by the defendant's paying part of the money and giving a warrant of attorney to confess judgment for the residue, and in the interval between the time when the warrant of attorney was given, and the time the money became due according to the defeasance thereof, the plaintiff told his attorney in the suit, that he was glad it was settled, for that he had not given consideration for the note, and he knew it was a lottery transaction: it was held, that the attorney was admissible to prove this conversation in an action to recover back the money. (a) The communication, said Lord Kenyon, was not made by the client in confidence as instructions for conducting his cause; on the contrary, the purpose in view had been already obtained, and what was said was in exultation to his attorney for having before deceived him as well as his adversary, and for having obtained his suit. The privilege is also confined to communications to the attorney in his character of attorney; and, therefore, a communication made to him, or question asked him by his client, not for the purpose of getting his legal advice, but to obtain information as to a matter of fact, is not privileged. As when a client asked his attorney whether he could safely attend a meeting of his creditors, called on the attorney's suggestions, and the attorney advised him to remain at his office for the present, and he accordingly remained there two hours to avoid being arrested; it was held that the attorney might prove all these facts, in order to shew an act of bankruptcy, in an action by his client's assignees. (a) So in the case of Annesley v. Lord Anglesea, (b) it was held, that a conversation which passed between Lord A. and his attorney twenty years ago, respecting the prosecution of the plaintiff for murder, was not privileged, since it was not matter of professional confidence. ed upon it, is evidence against the client, Assignees of Meyer v. Sefton, 2 Stark. N. P. C. 274. So an admission of a debt made by an attorney to the adverse party, by direction of his client, is not privileged, Turner v. Railton, 2 Esp. 474. (y) Duffin v. Smith, Peake N. P. C. 108. by Lord Kenyon. (z) Cobden v. Kendrick, 4 T. R. 432. (a) Bramwell v. Lucas, 2 B. & C. 745. (b) 9 St. Tr. 391. before the Barons of the Exchequer in Ireland, 1743. nation of an attorney. If an attorney or counsel be called by his own client to give Cross-examievidence, he is not privileged from cross-examination on the same matter as to which he was examined in chief, although it were a confidential communication made professionally: but the crossexamination must not extend beyond that matter. (c) There are, besides these professional communications, a number of cases of a particular description, in which, for reasons of public policy, information is not permitted to be disclosed. Courts Informers. of justice will not permit witnesses to be asked the names of those from whom they receive information as to frauds on the revenue. (d) In all the trials for high treason of late years, the same course has been adopted: and if parties were willing to disclose the sources of their information, they would not be suffered to do it by the Judges. (e) "If the name of an informer," said Mr. Justice Buller, in Hardy's case, "were to be disclosed, "no man would make a discovery, and public justice would be "defeated." And this privilege not only protects the actual informer himself, but those questions which tend to the discovery of the channels by which the disclosure was made to the officers of justice, are not permitted to be asked. Thus a person who has been employed to collect secret information for the Agent of goexecutive government, or for the service of the police, is not al- vernment or lowed to reveal the name of his employer, or the nature of the police. connexion between them; (f) or the names of any persons to whom he has communicated his information for the purpose of its being transmitted, (g) whether those persons were magistrates, or concerned in the administration of government, or were merely the channel through which information was conveyed to government. (h) Upon the same ground the Attorney-General of Upper Canada Official comwas not allowed to be asked as to the nature of a communication munications. made by him to the governor of the province. (i) So the orders given by the governor of a foreign colony to a military officer under his command, ought not to be produced. (j) So Abbott, C. J., refused to admit in evidence the report of a military court of enquiry, in an action of libel by an officer, respecting whose conduct the Court had been appointed to enquire; and his decision was confirmed on error in the Exchequer Chamber.(k) And Lord Ellenborough would not permit the contents of a letter, written by an agent of government to Lord Liverpool, then secretary of state, or his Lordship's answer, to be produced as evidence.() In Watson's case, an officer of the Tower of London. (c) Vaillant v. Dodemead, 2 Atk. 524. (d) By Dallas, C. J., in Home v. Bentinck, 2 Brod. & Bing. 162. Hardy's case, 24 How. St. Tr. 753. But where a person officiously interferes to inform any of the constituted authorities of alleged abuses, the communication is not privileged; and if untrue, may be considered malicious and actionable, Robinson v. May, 2 Smith 3. (e) 2 Brod. & Bing. 162. (f) 24 How. St. Tr. 753. (h) By Abbott, J., in Rex v. Wat- (i) Wyatt v. Gore, Holt. N. P. C. 299., ruled by Gibbs, C. J. (j) Cooke v. Maxwell, 2 Stark. N. P. C. 185. (k) Home v. Lord F. C. Bentinck, 2 Brod. & Bing. 130. (1) Anderson u. Hamilton, (n.) 2 Brod. & Bing. 156. |